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Nease v. State (01/28/2005) ap-1967
Nease v. State (01/28/2005) ap-1967
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PETER NEASE, )
) Court of Appeals No. A-
8560
Appellant, )
Trial Court No. IJU-02-148 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
)
Appellee. ) [No.
1967 - January 28, 2005]
)
Appeal from the District Court, First Judi
cial District, Juneau, Larry R. Weeks and
Peter B. Froehlich, Judges.
Appearances: Eric Hedland, Assistant Public
Defender, Juneau, and Barbara K. Brink,
Public Defender, Anchorage, for Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
A Juneau police officer stopped Peter Nease after he
observed that the passenger-side brake light on Neases pickup
truck did not light up when he stopped at a traffic light.1 When
the officer contacted Nease, he observed signs that Nease was
driving while intoxicated, and ultimately arrested Nease for that
offense.2 Nease argues that the evidence of his intoxication
should have been suppressed because the police officer used his
malfunctioning brake light as a pretext to stop him for driving
while intoxicated. For the reasons below, we reject this claim
and affirm Neases conviction.
Facts and proceedings
While on patrol early on the morning of February 3,
2002, Juneau Police Officer Matt Torok saw Nease having a drink
at Marlintinis bar. Officer Torok recognized Nease and his red
pickup truck from an incident several days earlier. During that
earlier incident, Officer Torok had observed Nease speeding 75
miles per hour in snowy conditions. But by the time Officer
Torok caught up with Nease, Nease was no longer in his truck and
denied that he had been driving. Nease could barely walk and
reeked of alcohol. Officer Torok suspected that he had been
driving while intoxicated. But Officer Torok did not arrest
Nease because he could not identify him as the driver. Officer
Torok told Nease that the next time he drove drunk ... [he] was
going to get him.
After seeing Nease at Marlintinis bar on February 3,
Officer Torok continued his patrol. About an hour later, Officer
Torok spotted Neases truck parked at the nearby Valley
Restaurant. By the time Officer Torok turned his patrol car
around, Nease was pulling his truck out of the restaurant parking
lot and onto the Glacier Highway. Officer Torok followed Nease,
observing no problems with his driving. But when Nease stopped
at a traffic light, Officer Torok saw that one of his brake
lights was not working. Officer Torok activated his emergency
lights and pulled Nease over. After determining that Nease was
intoxicated, Officer Torok arrested him for driving while
intoxicated.
Nease filed a motion to suppress the evidence seized as
a result of this stop. He argued that the stop was illegal
because his alleged broken brake light was a pretext to
investigate him for drunk driving. After an evidentiary hearing,
District Court Judge Peter B. Froehlich granted Neases motion and
suppressed the evidence. Judge Froehlich found that, but for the
incident several days earlier, Officer Torok would not have
stopped Nease for the broken brake light.
The State filed a petition for review in superior
court, arguing that the district court had applied the wrong
standard in assessing the legality of Neases stop. The State
argued that an officers subjective intent for a traffic stop is
irrelevant to the assessment of whether that traffic stop was
justified. Superior Court Judge Larry R. Weeks agreed and
remanded the case. Judge Weeks, quoting Beauvois v. State,3
directed the district court to determine whether, under the facts
known to the police officer, the stop of the car was objectively
justified.4
The parties presented no additional evidence on remand.
After hearing argument, Judge Froehlich found that Officer Torok
did not have reasonable suspicion to stop Nease, and he
reaffirmed his order granting Neases motion to suppress. Judge
Froehlich recalled that Officer Torok had testified that Neases
brake light might have been alternating or flickering. He
concluded that this testimony had not established a clear
[traffic] infraction, and that the State had thus not met its
burden of showing by a preponderance of the evidence that there
was any reason for stopping Mr. Nease other than to check him to
see if he was driving under the influence of alcohol.
The State again petitioned for review, arguing that
Judge Froehlich had again erred in considering the subjective
intent of the officer in assessing the legality of the stop. The
State also argued that Judge Froehlich had clearly erred in
finding that there was too little evidence of a brake light
malfunction to justify the traffic stop. Judge Weeks reversed
the district court a second time, and ordered that the matter be
set for trial. Nease then entered a Cooksey plea in district
court, preserving his right to appeal the denial of his motion to
suppress.5
Why we conclude that Neases stop was not an illegal
pretext stop
Nease asks us to uphold the district courts factual
finding that there was too little evidence of a broken brake
light to justify his stop. He also asks us to affirm the
district courts ruling that his stop was a pretext to investigate
him for drunk driving.
Judge Froehlich concluded that Officer Torok did not
have reasonable suspicion to stop Nease for a broken brake light.
But normally an officer who directly observes a violation of the
traffic code has probable cause for a traffic stop.6 Probable
cause is therefore the appropriate standard to apply in
evaluating the stop in this case.
Whether probable cause for a traffic stop exists is a
mixed question of fact and law.7 We view the evidence in the
light most favorable to the district courts ruling,8 overturning
its factual findings only if they are clearly erroneous.9
Whether those facts justify a finding of probable cause is an
issue subject to de novo review.10
The State argues that the district court clearly erred
in finding on remand that the State had not met its burden of
showing that Officer Torok had observed a traffic violation. We
agree. Officer Torok testified that he was driving directly
behind Nease when he saw that the passenger side brake light on
Neases pickup truck did not light up when Nease stopped at the
light. Nease offered no evidence to contradict this testimony
and, immediately after hearing this testimony, Judge Froehlich
concluded that the facts of the stop were undisputed. Some two
months later, when the case was on remand from the superior
court, Judge Froehlichs memory had apparently faded; he found
that there had been no clear [traffic] infraction that Neases
brake light may have been alternating or flickering. There is no
evidence to support a finding that Neases brake light alternated
or flickered Officer Toroks uncontradicted testimony was that the
brake light did not light up. Because 13 AAC 04.035(c) requires
rear brake lights to be illuminated by application of the service
or foot brake, this observation gave Officer Torok probable cause
to stop Nease for violating the traffic code.
Nease argues that his stop was nevertheless illegal
because Officer Toroks real reason for stopping him was not the
broken brake light but his suspicions that Nease might be driving
while intoxicated. Nease argues that the Alaska Constitution
forbids the police from using a traffic infraction as a pretext
to stop a motorist for an offense for which the police do not
have enough individualized suspicion to justify a stop. Nease
acknowledges that under the United States Supreme Courts decision
in Whren v. United States,11 Officer Toroks motivations for the
stop are irrelevant under Whren, a traffic stop comports with
the Fourth Amendment as long as all the circumstances, viewed
objectively, give the police probable cause for the stop.12 But
Nease argues that we should reject Whren as a matter of state law
and adopt a subjective test similar to that employed by the
Washington Supreme Court in State v. Ladson.13
In Ladson, the Washington high court held that a
traffic infraction may not be used as a pretext for a search, or
even as a pretext to stop to investigate for a sufficient reason
to search even further.14 To determine if a stop is pretextual
under this standard, Washington courts look at the totality of
the circumstances, including both the subjective intent of the
officer as well as the objective reasonableness of the officers
behavior.15
We conclude that it is unnecessary in this case to
decide whether to adopt Whren or, conversely, to adopt Ladson as
a matter of state law. We reach this conclusion because Nease
failed to allege sufficient facts to bring the traffic stop
within the doctrine of pretext stops.
As Professor LaFave explains in his work on search and
seizure,16 the fact that a police officer may have an ulterior
motive for enforcing the law is irrelevant for Fourth Amendment
purposes even under the doctrine of pretext searches unless the
defendant proves that this ulterior motive prompted the officer
to depart from reasonable police practices:
[The officers] underlying intent or
motivation ... does not require suppression
[if] the Fourth Amendment activity undertaken
[by the officers] is precisely the same as
would have occurred had that intent or
motivation been entirely absent ... . This
means, for example, that if the police arrest
[a defendant] for crime A, as they would have
in any event, in the anticipation or hope of
thereby finding evidence of crime B on [the
defendants] person, [this] underlying intent
or motivation does not make their action
illegal. Likewise, if the police stop [a
motorists] car for minor offense A, and they
subjectively hoped to discover contraband
during the stop so as to establish serious
offense B, the stop is nonetheless lawful if
a reasonable officer would have made the stop
in the absence of the [ulterior] purpose.[17]
We assume for purposes of argument
that Officer Torok decided to follow Neases
vehicle because he suspected that Nease might
be intoxicated (based on the prior incident
involving Nease, and based on the time of day
and the fact that Officer Torok had observed
Nease drinking in a bar just a short time
before). But Officer Toroks decision to
follow Neases vehicle did not infringe Neases
Fourth Amendment rights. While
Officer Torok was following Neases vehicle,
he observed that Nease had a non-functioning
brake light. Officer Torok pulled Nease over
to cite him for this traffic offense a stop
that was supported by probable cause. Even
if we were to subscribe to the doctrine of
pretext stops, the question would be whether
Nease proved that Officer Torok departed from
reasonable police practice when he decided to
stop Nease because of the non-functioning
brake light.
There are numerous factors that a
police officer may properly consider when
deciding whether to stop a motorist for a
traffic violation, including the
egregiousness or seriousness of the violation
(i.e., whether it poses a danger to safety),
any earlier police contacts with the motorist
or the vehicle, the time of day or night, the
weather and road conditions, and the press of
other business (or lack thereof).
Here, Officer Torok had observed
Nease drinking in a bar earlier that morning.
Officer Torok might thus surmise, both from
his prior contact with Nease and from his
observations of Nease earlier that morning,
that Nease was intoxicated. This suggests
that Officer Torok had an additional reason
for wanting to stop Neases vehicle. But as
explained in the quoted passage from
Professor LaFave, this additional motivation
is irrelevant in the absence of proof that
Officer Toroks decision to stop Nease and
issue him a citation represented a departure
from reasonable police practice, given the
circumstances of this case.
In the present case, Judge Froelich
concluded that Officer Torok stopped Neases
vehicle primarily because the officer wished
to investigate the possibility that Nease was
driving while intoxicated. At one point in
the judges remarks, he indicated that this
conclusion was based on the finding that
Officer Torok had no good reason to believe
that Neases brake light was broken. As we
have explained, this finding was clearly
erroneous: the record shows that Officer
Torok personally observed (and thus had
probable cause to believe) that Neases brake
light was not working properly.
Judge Froelichs ruling also appears
to have been based on a conclusion about
Officer Toroks subjective state of mind:
that the traffic stop should be invalidated
because Officer Toroks primary subjective
motivation for making the stop was to
investigate his suspicion that Nease was
driving while intoxicated. But as we have
explained, even under the pretext doctrine,
the precise issue is not Officer Toroks
subjective motivation for making the stop.
Rather, the question is whether Officer Torok
departed from reasonable police practice
when, having probable cause to stop Nease
because of the broken brake light, he in fact
stopped Nease.
Nease presented no evidence to
suggest that police officers never stop
motorists to issue citations for equipment
violations, or that they would never do so
under the circumstances of this case.
Moreover, Nease has never asserted (much less
shown) that Officer Torok manipulated the
traffic stop in this case by abnormally
expanding or extending his contact with Nease
so that he could investigate Neases potential
drunk driving.
There is no evidence that Officer
Toroks contact with Nease exceeded the normal
duration or scope of a traffic stop for an
equipment violation. As far as we can tell
from this record, it was immediately apparent
to Officer Torok, when he contacted Nease
during the traffic stop, that Nease might be
impaired. And because Officer Toroks initial
contact with Nease gave him reasonable
suspicion to believe that Nease was driving
while under the influence, Officer Torok
could properly ask Nease to perform field
sobriety tests.
In sum, Officer Torok had probable
cause to stop Nease for the equipment
violation, and Nease failed to present
evidence that no reasonable police officer
would have conducted a traffic stop under
these circumstances. Any finding to the
contrary would be clearly erroneous on this
record. Accordingly, even if we adhered to
the doctrine of pretext stops and searches,
Nease would not be entitled to suppression
of the evidence against him.
Conclusion
The superior courts decisions were correct,
and Neases conviction is AFFIRMED.
_______________________________
1 13 Alaska Administrative Code (AAC) 04.035(c) provides in
relevant part that rear brake lights must be illuminated by
application of the service or foot brake.
2 AS 28.35.030(a).
3 837 P.2d 1118 (Alaska App. 1992).
4 Id. at 1121-22 n.1 (emphasis added).
5 Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
6 See, e.g., Williams v. State, 853 P.2d 537, 538 (Alaska
App. 1993) (police had probable cause to make a traffic stop
because the evidence, viewed in the light most favorable to the
district courts ruling, established that the drivers taillight
was emitting at least some white light in violation of 13 AAC
04.145(e)).
7 See Chandler v. State, 830 P.2d 789, 792 (Alaska App.
1992).
8 State v. Wagar, 79 P.3d 644, 650 (Alaska 2003).
9 Chandler, 830 P.2d at 792.
10 Id.
11 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
12 Id. at 809-19, 116 S.Ct. at 1772-77.
13 979 P.2d 833 (Wash. 1999).
14 Id. at 840.
15 Id. at 843.
16 Wayne R. LaFave, 1 Search and Seizure: A Treatise on
the Fourth Amendment 1.4, at 115-25 (3rd ed. 1996).
17 Id. at 117-18.
